The legal wrangling over Whitaker’s appointment is part of a broader lawsuit seeking to force the Trump administration to uphold a key section of the Affordable Care Act.
The Maryland attorney general wants Whitaker removed from the position where he can make decisions on behalf of the federal government about the health-care litigation.
Mooppan said he would not disclose “internal workings of the department,” including whether Whitaker is personally participating in such discussions.
“I’m not saying it’s privileged; I’m saying it’s not appropriate,” Mooppan said at the hearing in federal court in Baltimore.
The government was responding to a motion filed by Maryland’s attorney general last month asking a federal judge to block Whitaker’s appointment and to declare that the post rightfully belongs to Deputy Attorney General Rod J. Rosenstein, who was confirmed by the Senate.
Trump picked Whitaker last month to serve in the acting capacity after forcing Sessions to resign and has said he intends to formally nominate William P. Barr to fill the post. Until Barr is confirmed by the Senate, Whitaker is the nation’s top law enforcement officer and oversees the special counsel’s investigation into Russia’s interference in the 2016 election. Whitaker’s elevation has raised concerns about his qualifications, his past statements as a U.S. Senate candidate and his business practices.
U.S. District Judge Ellen L. Hollander suggested Wednesday that a ruling invalidating Whitaker’s appointment would be inconsistent with past court decisions.
“Wouldn’t I be an outlier if I agreed with you?” she asked attorney Tom Goldstein, who is working with Maryland Attorney General Brian E. Frosh. The rulings from other courts, she said, “essentially say the president has a choice.”
Maryland contends the appointment violates a federal statute that lays out the line of succession at the Justice Department and gives authority to the deputy attorney general when the top job is vacant.
Goldstein said the statute designating a specific successor means “you don’t just let the president choose.” The law, he said, was designed to prevent presidents from tapping allies who, he said, might hypothetically be inclined to “shut down an investigation of the president.”
“We are being subjected to the actions and influences of an unconstitutional decision-maker,” he said.
Maryland’s attorney general went to court in September after Sessions told Congress that the Justice Department would not defend key provisions of the health-care act, including protections for people with preexisting conditions.
The judge pressed lawyers on both sides about the implications of a separate decision Friday from a federal judge in Texas, who declared the health-care law unconstitutional.
The government’s lawyer urged the court to dismiss the underlying case as “speculative” and not based on any tangible impact on Maryland residents.
Maryland’s lawyer said the Texas ruling injects even more uncertainty and concern that the Trump administration will stop enforcing the health-care law.
Beyond declining to discuss Whitaker’s role, the government more broadly said the president’s appointment powers are backed by the practice of past presidents, court rulings and legal analyses.
The temporary pick is authorized under the 1998 Federal Vacancies Reform Act, Mooppan said, and was similarly used by Presidents Barack Obama and George W. Bush.
“We are not just right,” Mooppan said, “but clearly right.”
The judge said she would issue a written ruling but did not say when.